but is disaffirmed as to his disallowance of pay, and the appellant is now allowed the monthly pay of his rating, viz: $24.20, from July 19 to October 16, 1908, inclusive, two months and twenty-eight days, amounting to.. Rebate on transportation.....

Total.......

Less hospital dues..

$70.98

2.62

73.60

.59

73.01

A difference is therefore found in favor of the appellant of seventy-three dollars and one cent ($73.01).

EXPENSES OF SPECIAL DEPUTY MARSHALS FOR SERVING PETITIONS AND SUBPŒNAS IN BANKRUPTCY ISSUED OUT OF A COURT OF ANOTHER DISTRICT.

Petitions and subpoenas in bankruptcy, issued out of a United States district court in one district, may be served in another district by the marshal of the latter district, and such marshal is entitled to the proper fees and expenses for making such service.

The petition and subpoena in bankruptcy, although both are served at the same time, are separate writs for each of which a separate fee is authorized by section 829 of the Revised Statutes.

The word "compensation" may sometimes include "expenses," but ordinarily when an employee of one department is authorized to perform services for another department, although the department by which he is regularly employed at the time usually pays his compensation, the other department ultimately pays the expenses occasioned by his special employment.

When a special deputy officer of the Interior Department has been appointed by the Department of Justice as a special deputy marshal, with "the understanding that he was to receive no compensation" from any appropriation under the control of the latter department, the word compensation is not to be construed so as to prohibit the payment out of the judiciary appropriation of the proper expenses legally incurred by such special deputy in serving process in a bankruptcy case within the district for which he was appointed when such service is in no way connected with his duties as special officer of the Interior Department. The Comptroller has no authority to advise or instruct marshals with reference to the fees to be charged private litigants, such questions being for the determination of courts in the taxation of costs.

Comptroller Tracewell to S. L. Hodgin, United States marshal, January 26, 1910:

I am in receipt of your letter of the 14th instant, as follows: "I have the honor to transmit herewith account of Special Deputy United States Marshal Sam Cone for service of a

subpoena in bankruptcy and petition in bankruptcy, the subpoena and petition having been issued out of the United States district court for the eastern district of Washington and served by Mr. Cone in the district of Idaho. I also inclose letter from Mr. Cone 'submitting the account and letter from the marshal at Spokane, Wash., in answer to my inquiry as to the exact nature of the process.

As the papers served in this case were process which does not run from one district into another, as I understand it, the account is respectfully submitted for instructions as to whether or not I shall accept the fee for service from the attorneys in the case and reimburse Mr. Cone for expenses incurred by him in making service.

"Mr. Cone is a deputy special officer of the Interior Department and was appointed as a deputy United States marshal for the district of Idaho without compensation or expenses from the Department of Justice."

It has been decided (Toler's case, December 30, 1907, 43 MS. Comp. Dec., 1519) that a petition and subpœna issued out of a United States district court in one district may be served in another district by the marshal of such other district and that he is entitled to proper fees and expenses for making the service. This ruling was based upon the fact that the service of process in bankruptcy cases conforms generally to that in equity cases. (See sec. 738, Rev. Stats.;

sec. 8 of the act of March 3, 1875, 18 Stat., 472; act of July 1, 1898, 30 Stat., 544; sec. 6 of the act of February 5, 1903, 32 Stat., 798; In re Burka, 107 Fed. Rep., 674; In re Benedict, 140 Fed. Rep., 55.)

It has also been decided that a summons (or the subpoena) and a petition in bankruptcy, although both are served at the same time, are separate writs, for each of which a separate fee is authorized by section 829, Revised Statutes. (Treat's case, 5 Comp. Dec., 674; see also In re Damon, 104 Fed. Rep., 775.)

While it is proper to call your attention to these rulings, you are at the same time advised that the question of what fees and expenses are payable to a deputy marshal out of the judiciary appropriations does not involve the question of the fees to be charged private litigants, the latter being for the determination of the court upon the taxation of costs. What amount a marshal should charge private parties in

such cases is a question not within the jurisdiction of the Comptroller, and he has no authority to advise or instruct a marshal in regard thereto. (3 Comp. Dec., 239, 241; 15 id., 408, 410.)

The jurisdiction of the Comptroller in the case presented by you is therefore limited to a decision of the question as to whether you are authorized under the law to pay Special Deputy United States Marshal Cone the amount, or any part thereof, claimed by him as expenses incurred in serving the subpœna and petition in bankruptcy. It is noted that he makes no claim for fees or compensation for services rendered.

It is understood that Mr. Cone was appointed a special deputy marshal with the "understanding that he was to receive no compensation" from any appropriation under the control of the Department of Justice, as stated in the Attorney-General's letter to you dated January 9, 1909. This letter makes no express reference to the deputy's expenses. The word "compensation" may sometimes include "expenses," but ordinarily where an employee of one department is authorized to perform a service for another department, although the department by which he is regularly employed at the time usually pays his compensation, the other department ultimately pays his expenses occasioned by his special employment. I hardly think in this case that the word "compensation" can reasonably be construed so as to prohibit the payment of proper expenses legally incurred by the special deputy marshal in serving process in a bankruptcy case within the district for which he was appointed (Idaho), when such process was in no way connected with the duties which he is called upon to perform as a special officer of the Interior Department. It is clear that the Interior Department appropriation is not chargeable with expenses incurred by a special deputy marshal solely in serving such process.

In conclusion you are advised that should you find upon investigation that Mr. Cone was during this trip traveling solely in his capacity as a special deputy marshal, and not in his capacity as an employee of the Interior Department, you

would be authorized to pay his proper expenses incurred within the district of Idaho growing immediately out of his serving the subpoena and petition in bankruptcy, otherwise you would not be authorized to pay him anything. (See Victor's case, November 2, 1908, 47 MS. Comp. Dec., 706; also act of May 28, 1896, 29 Stat., 179.)

AVERAGING EXPENSES OF FIELD DEPUTY MARSHALS INCURRED WHILE ENDEAVORING TO ARREST.

When field deputy marshals are endeavoring to arrest on a trip that continues more than one day, and their actual necessary expenses amount to more than $2 on any one day, such field deputies are entitled to reimbursement in the sum actually and necessarily expended by them while so endeavoring, not to exceed an average of $2 per day, notwithstanding that no part of the expense was incurred on one of the days. No expenses in endeavoring can be allowed prior to the deputies actually starting on the trip to arrest, and such expenses cease the moment the arrest is made, nor can such expenses be averaged except when incurred on consecutive days.

Decision by Comptroller Tracewell, January 28, 1910:

A. M. Storer, United States marshal for the northern district of Mississippi, appealed January 7, 1910, from the action of the Auditor for the State and other Departments in the settlement of his account under the appropriation "Salaries, fees, and expenses of marshals, United States courts" for the quarter ended March 31, 1909, wherein the auditor, per judicial certificate No. 2223, December 21, 1909, disallowed $2, being expenses incurred by Field Deputy Warren while endeavoring to arrest in the case of United States v. Raif Thomas.

The facts show that after receipt of a warrant of arrest, duly issued, charging the defendant with a violation of the internal-revenue laws, the deputy marshal started in pursuit of said defendant on February 11, 1909, traveling 42 miles that day, and lodged that night with a friend, who made no charge for lodging. It appears also that the deputy's transportation for that day did not cost him anything. On the next day the deputy "hired a team," and after traveling through the country at least 10 miles succeeded in finding

the defendant and arresting him. The total expenses endeavoring to arrest actually and necessarily incurred and paid by the deputy amounted to $4, all of which was incurred on the 12th, as follows:

Team hire, $3; feed for team, 50 cents; dinner for deputy, 50 cents.

The Auditor disallowed $2 of the expenses incurred as above, being of the opinion that inasmuch as the whole expense, $4, was incurred on one day, February 12, the per diem maximum of $2 could be allowed for only one day, and not averaged so as to reimburse the deputy at the rate of $2 for the two days during which it is admitted he was actually endeavoring to arrest. It is understood that had a part of these expenses, no matter how small, been incurred on the first day, the Auditor would have allowed the $4, i. e., by averaging the entire expense so as to allow $2 for each of the two days.

Paragraph 18 of section 829, Revised Statutes, provides:

"For expenses while employed in endeavoring to arrest, under process, any person charged with or convicted of a crime, the sum actually expended, not to exceed two dollars a day

* * * "1

Section 11 of the act of May 28, 1896 (29 Stat., 182), provides, inter alia, that a field deputy marshal

11* * * shall be allowed his actual necessary expenses, not exceeding two dollars a day, while endeavoring to arrest, under process, a person charged with or convicted of crime

* *

In Cooper's case, May 12, 1902 (21 MS. Comp. Dec., 615), the long continued practice of the accounting officers to allow a field deputy marshal reimbursement for actual necessary expenses incurred while endeavoring to arrest, not to exceed an average of $2 per day, was recognized and sanctioned.

In that case I said:

"The practice has been when two or more days are occupied in an endeavor to arrest, to allow the average of $2 a day, although that amount was not spent the first day and more than that amount was spent on each of the other days. Such a practice being of long continuance I see no necessity to change it, otherwise the rule now applicable to other people who have per diem allowances would be followed as